AT812785CNV - Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 [Transitional]
[Common Rule declared by PR953427 from 01Jan05]
Further to the decision issued by the Commission on 20 December 2004 [AW812785 PR953553] and pursuant to ss.141 and 493A of the Workplace Relations Act 1996 (the Act), the Commission makes the following declaration for a common rule award:
1. In this Declaration:
1.1 the award means the Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001, as varied from time to time;
1.2 employees means employees in the industry who perform work of a kind that is covered by the award;
1.3 employers means employers who employ employees;
1.4 the industry means the industry and callings in or in connection with the collection and/or transportation and/or handling of any waste or any material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed or in any other state or form) for the purpose of disposal to transfer stations, landfill, incinerators, recycling depots or yards or terminals, treatment plants, compost facilities, etc. or for the purposes of recycling and/or re-use.
2. That save for and subject to the matters referred to in clauses 4 to 8 below, the whole of the terms of the award except those specified in clause 3 below, shall be:
2.1 a common rule for the industry in Victoria and known as the Transport Workers (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005;
2.2 binding on all employers in respect of the employment by them of employees;
2.3 binding on all employees; and
2.4 binding on the Transport Workers’ Union of Australia and other registered organisations respondent to the award.
3. The following clauses of the award are not included in the Transport Workers (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005:
3.1 clause 5 - Duration of award;
3.2 clause 6 - Incidence; and
3.3 clause 7 - Parties bound and area of operation; insofar as it refers to employers bound by the award.
4. The Transport Workers (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005 shall not apply to:
4.1 Persons employed by respondents to the Glass Industry – Bottle Merchants – General Award 1998 [AW782603] as at 28 May 2002.
5. Subject to 5.1 to 5.5 below, all provisions in the Transport Workers’ (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005 are to operate from 1 January 2005.
5.1 With respect to annual leave, only periods of annual leave commencing on or after 31 January 2005 attract leave loading.
5.2 With respect to redundancy payments for employees of employers who have less than 15 employees, only service on or after 1 January 2005 is to be taken into account for the purpose of calculating ‘service’.
5.3 With respect to redundancy payments for employees of employers who have 15 employees or more, only service on or after 1 January 2004 is to be taken into account for the purpose of calculating ‘service’. [Note: the agreement in respect of this issue is without prejudice to the position a party may put in roping-in proceedings.]
5.4 Any accident make-up pay clause is to apply in relation to any injury on or after 3 August 2004.
5.5 The wages clauses (including all allowances and penalty payments) are to commence operation from the first pay period on or after Monday, 3 January 2005 provided that in all cases the wages clauses commence operation no later than 5 January 2005.
6. The Transport Workers’ (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005 shall not apply to employers respondent by any means to any other award of the Commission in respect of the employment by them of employees covered by that award.
7. This declaration shall not apply to a person with a disability who is eligible for a Disability Support Pension and who is employed by a supported employment service that receives funding under the Disability Services Act 1986 (Cth) to provide support for that person. [See Note 1 below.]
8. Subject to 8.1, an employer who is making superannuation contributions into a complying superannuation fund, within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth), on behalf of an employee covered by this declaration prior to the date of effect of this declaration is exempt from any provision in the award which specifies the fund or funds into which superannuation contributions are to be paid. [See Note 2 below.]
8.1 Where Commonwealth legislation requires choice of superannuation fund, the Transport Workers Union Superannuation Fund shall be the default fund for all superannuation contributions unless another fund is so specified by the employee.
8.2 Employers in new businesses established on or after 1 January 2005 shall in respect of each of their employees covered by this declaration make superannuation contributions in accordance with the Transport Workers’ (Superannuation) Consolidated Award 2004 [AW834577CAN] as varied from time to time.
9. In the event of a dispute about the entitlement of an employer to set-off entitlements and benefits required to be provided under a contract of employment made prior to the date of this declaration against entitlements and benefits required to be provided under the Transport Workers’ (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005, the matter may be referred to a Board of Reference consisting of a Member of the Commission which shall determine whether or not such a set-off should be permitted having regard to what is fair and equitable in all the circumstances of the case, without regard to technicalities and legal forms.
9.1 An appeal lies from a decision of a Board of Reference to a Full Bench of the Commission.
9.2 This clause shall apply for a period of twelve months from the commencement date of the Transport Workers’ (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005.
9.3 Any registered organisation bound by the terms of the Transport Workers’ (Refuse, Recycling and Waste Management) Victorian Common Rule Declaration 2005 shall be notified of the time and date of hearing in relation to any application made pursuant to this provision.
10. Nothing in this declaration reduces or in any way detracts from any accrued rights to any forms of leave including sick leave, annual leave, long service leave or parental leave to which employees or any of them have become entitled by accrual or otherwise prior to the commencement date in clause 11 below.
11. This declaration shall be an award of the Commission, shall come into force on 1 January 2005 and shall remain in force for a period of three months and thereafter in accordance with the Act. [See Note 3 below.]
Note 1
1. Disability Support Pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided for under the Social Security Act 1991 (Cth), as amended from time to time, or any successor to that scheme.
2. The intention of this provision is limited to preventing the award from applying to sheltered workshops (i.e. supported employment services) - it does not prevent the award from applying to employees with disabilities in open employment.
3. Leave is reserved for any party to have this issue reconsidered in the light of any developments in the national process which is currently considering workplace relations issues for sheltered workshops. This national process includes the Disability Sector National Industry Consultative Council and any related applications that seek award coverage for sheltered workshops.
Note 2
1. The purpose of the exception above is to maintain the status quo in respect of employers who, as at the date of effect of the common rule declaration, are making superannuation contributions into a complying superannuation fund. These employers will not be required to change their existing arrangements. Nor will there be any requirement for the existing arrangements to be the subject of an agreement between the employer and employees. For the avoidance of doubt, the exception continues to apply to employers who are making superannuation contributions to complying superannuation funds which are successor funds (as defined in Regulation 1.03 of the Superannuation Industry (Supervision) Regulations 1994, or as amended or replaced by other legislation) into which benefits are transferred, after the date of effect of the common rule declaration, in accordance with the Superannuation Industry (Supervision) Act 1993 and the Regulations thereunder. Further, “existing arrangements” includes the making of contributions to such funds.
2. The exception is in respect of current and future employees of the employers who are entitled to the benefit of the exemption.
3. The exception does not apply to new businesses which are established after the date on which the award is declared to have effect as a common rule.
4. The exception only applies to employers who are required to apply the terms of the award by virtue of the Common Rule declaration. It does not apply to employers who are named respondents to the award or who are parties bound by virtue of the membership of an employer organisation.
5. The exception applies subject to any Commonwealth legislation to the contrary.
Note 3
Subject to s.113 of the Workplace Relations Act 1996 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters (see s.148 of the Workplace Relations Act 1996).
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